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TMI Blog2012 (7) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... ts only to the extent as mentioned in this notification. This notification does not mention the Education Cess levied under Finance Act, 2004 and Finance Act, 2007 as being covered by this exemption. When Notification No. 123/74-C.E dated 1-8-74 and No. 27/81-C.E. dated 1-3-81 issued under Rule 8(1) of Central Excise Rules, 1944 (corresponding to Section 5A of Central Excise Act, 1944) exempted the goods “from the duty leviable thereon”, according to well recognised canons of construction of statutes, these exemptions should be read as granting exemption only in respect of duty of excise payable under the Central Excise Act, 1944 and the exemption cannot be extended to any other duty leviable on the goods under some other Act. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of this Notification or take self-credit in the PLA, which can be utilised for payment of duty through PLA during the next month. The point of dispute in this case is as to whether the respondent are also eligible for the benefit of this notification in respect of Education Cess or in other words, whether the respondents are also eligible for refund of Education Cess and Secondary and Higher Education Cess, which had been paid through PLA. The original Adjudicating Authority disallowed the benefit of this exemption to the respondent in respect of both the Education Cess and rejected the refund of Education Cess and Secondary and Higher Education Cess. The respondent filed appeals against the orders of the Deputy Commissioner b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication does not cover the Education Cess leviable under Finance Act, 1964 and Secondary and Higher Education Cess leviable under Finance Act, 2007, the benefit of this notification cannot be extended to the Education Cess and Secondary and Higher Education Cess, and that in view of this, the impugned order is not correct. 4. Shri Udit Jain and Hrishikesh, Advocates, the learned Counsels for the respondent, relied upon the judgment of the Tribunal in the case of Cyrus Surfactants Pvt. Ltd. v. CCE, Jammu reported in 2007 (215) E.L.T. 55 (Tri.-Del.), wherein Division Bench of the Tribunal held that Notification No. 56/2002-C.E. is applicable to the Education Cess, that in any case, since the Education Cess and Secondary and Higher Educ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 27/81-C.E. dated 1-3-81 issued under Rule 8(1) of Central Excise Rules, 1944 (corresponding to Section 5A of Central Excise Act, 1944) exempted the goods "from the duty leviable thereon", according to well recognised canons of construction of statutes, these exemptions should be read as granting exemption only in respect of duty of excise payable under the Central Excise Act, 1944 and the exemption cannot be extended to any other duty leviable on the goods under some other Act. Accordingly, the Apex Court in this case held that these exemption notifications would not cover the Special Duties of Excise leviable under Finance Act, and Additional Duty of Excise, leviable on the goods under Additional Duties of Excise (Goods of Special Impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... full duty leviable on the goods cleared during the month to the extent possible through Cenvat credit account and the balance amount, if any left to be paid, through PLA and it is the amount paid through PLA which is refunded. This refund is outside the scheme of Section 11B. However, the invoices issued show full duty payment which the assessee can recover from the customers and the customers can avail Cenvat credit as if no portion of duty paid was exempt. We are of the view that in these circumstances it cannot be said that the duty levied and collected is only the duty paid through Cenvat credit amount and that the Education Cess would be chargeable only on the portion of duty which was not refunded. (2) In any case, the point rai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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